Google Battles Private and Public Plaintiffs - International Law Office

Google Foils Attempt to Obtain Billions of URLs and Search Queries
Google's Secret Website Rating System Under Attack as Unfair


Google Foils Attempt to Obtain Billions of URLs and Search Queries

The search engine Google continues to make legal news in the US federal courts. The most recent decision of note came from the US District Court for the Northern District of California, San Jose Division, in Gonzales v Google, Inc (CV 06-8006MISC JW). On March 17 2006 Judge James Ware issued a long-anticipated decision on the Bush administration's lawsuit that initially had sought to enforce a subpoena to compel Google to turn over billions of uniform resource locators (URLs) and two months of search queries.(1)

The government originally requested the search information in order to justify a federal law intended to protect children from online pornography in a different case, ACLU v Gonzales, pending in the Eastern District of Pennsylvania. The government argued that it needed the subpoenaed information in part to show the Pennsylvania trial court both the prevalence of online pornography and the ineffectiveness of filters in blocking such. Google strenuously opposed the government's action, and after extended negotiations the government narrowed its request to a sample of 50,000 URLs from Google's search index and 5,000 random search inquiries entered by Google users from Google's query log.

Ware declined to compel production of any search inquiries. Google had contended in briefs and oral argument that search engine users sometimes reveal personal information, such as social security numbers, invite the interest of law enforcement officials by using phrases such as 'bomb-making equipment' or suggest sexual preferences of public officials. Ware said that while search inquiries could be within the scope of a subpoena, turning over the inquiries could potentially burden Google with a loss of goodwill among its users. The court saw this as a "potential burden" on Google, even though Google's website warns users in its terms of use that it protects only the "personal information" of users, which does not include their inquiries. The court said that:

"The expectation of privacy by some Google users may not be reasonable, but may nonetheless have an appreciable impact on the way Google is perceived and consequently the frequency with which users use Google."

In ruling that Google need only disclose something over 50,000 random URL addresses from its search index, Ware said the government only vaguely described how the study of URL addresses would be relevant to the issues in ACLU v Gonzales, but that "the court gives the government the benefit of the doubt" on relevance due to the broad definition of 'relevance' in the federal discovery rules. Moreover, the court said the government demonstrated a "substantial need for some information from Google in creating a set of URLs to run through filtering software", since Google is the largest search engine, with 45% of the market.

Professor Paul Schiff Berman of the University of Connecticut Law School was quoted in the San Francisco Chronicle on March 18 2006 as stating that the federal court decision "might... at least give counsel some caution before going on a fishing expedition". The International Technology Law Association, at its 35th Computer and Internet Law Congress in San Francisco on May 5 2006 to May 6 2006, has scheduled several programmes which will deal with the impact of the decision on future private and government search litigation.(2)

Google's Secret Website Rating System Under Attack as Unfair

Even as it enjoyed a degree of success against the government, Google encountered new private litigation over its rating of websites in KinderStart.com LLC v Google, Inc (C06-2057 RS). A civil suit filed in the US District Court for the Northern District of California by KinderStart claims that it, as well as many other websites, has been unfairly given low rankings on Google responses to search requests.(3)

The suit, which purports to be a class action, claims that Google has engaged in anti-competitive behaviour and misled the public by projecting itself as an objective source of internet content. It asserts that because Google handles far more search requests than other search engines, its ranking system can make or break a website that lacks an established name. It seeks unspecified financial damages and a court order that would require Google to change its practices.

Google's system is based on secret algorithms that seek to rank search results on websites with content that is the most relevant to a given search request. Because of the importance of attracting internet traffic, websites that receive a low Google ranking continuously seek to improve their ranking. One result is what some regard as an entire cottage industry focused on search engine optimization.

Some sites resort to manoeuvres designed to fool Google into highlighting their internet links. Google regularly adjusts its search formula to counteract these manoeuvres. In the more serious cases Google has been known to exile the manipulative websites, a practice known as 'being sent to the sandbox'.

KinderStart was launched in May 2000 as a directory and search engine offering links to information on subjects affecting young children (eg, childcare, child development, food and nutrition). It claims to have reached a peak of over 10 million page views to visitors per month before Google decided to "penalize" it for unstated reasons. KinderStart claims the result was a "cataclysmic" fall of 70% or more in monthly page views on its website. KinderStart claims that it has never been notified as to why its website was effectively "blocked" from open search inquiries on Google.

KinderStart's lawsuit alleges Google's policing efforts have penalized websites that have done nothing wrong. To make matters worse, the suit alleges the banished sites cannot determine how they can restore their standings because the company does not explain its actions.

Google previously mounted a successful defence of its right to revise its search formula as it deems appropriate. Thus, in 2003 Google persuaded a federal judge to dismiss a case filed in Oklahoma Federal Court by Search King Inc, whose search ranking had tumbled abruptly. Google argued that its search ranking formula represented an opinion protected by the First Amendment and the court agreed. This time, KinderStart is the one making accusations of free-speech violations, contending that Google's reducing of traffic sent to websites that have been wrongfully punished violates the First Amendment. KinderStart also claims antitrust violations and violation of California's unfair competition laws.

KinderStart faces substantial problems in attempting to maintain its case against Google. First, Google is not an arm of the government and free speech violations can be urged only against a so-called 'state actor'. Second, while Google is the market leader in the search engine industry, it could not be deemed entrenched at the top of such a rapidly changing environment. This casts doubt on KinderStart's antitrust claim. While California unfair competition law has a broad reach, new procedural requirements adopted in 2005 by California voters could impede KinderStart's class action.

For further information on this topic please contact Denis T Rice at Howard Rice Nemerovski Canady Falk & Rabkin by telephone (+1 415 434 1600) or by fax (+1 415 217 5910) or by email (drice@howardrice.com).

Endnotes

(1) For more information see entry on official Google blog at http://googleblog.blogspot.com/2006/03/judge-tells-doj-no-on-search-queries.html.

(2) Verne Kopytoff, "Google Must Divulge Data", San Francisco Chronicle (March 18 2006), C 1.

(3) Accessible at http://www.blog.ericgoldman.org/archives/2006/03/searcn_engine_b.htm.